[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Rules and Regulations]
[Pages 51591-51597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17031]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[Docket No. OAR-2004-0440; FRL-7960-2]
RIN 2060-AN06


Stay of the Findings of Significant Contribution and Rulemaking 
for Georgia for Purposes of Reducing Ozone Interstate Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is amending a final rule it issued under 
section 110 of the Clean Air Act (CAA) related to the interstate 
transport of nitrogen oxides (NOX). On April 21, 2004, EPA 
issued a final rule that required the State of Georgia to submit State 
implementation plan (SIP) revisions that prohibit specified amounts of 
NOX emissions--one of the precursors to ozone (smog) 
pollution--for the purposes of reducing NOX and ozone 
transport across State boundaries in the eastern half of the United 
States. This rule became effective on June 21, 2004.
    Subsequently, the Georgia Coalition for Sound Environmental Policy 
(GCSEP or Petitioners) filed a petition for reconsideration requesting 
that EPA reconsider the inclusion of the State of Georgia in the 
NOX SIP Call Rule and also requested a stay of the 
effectiveness of the rule as it relates to the State of Georgia only.
    In response to this petition, EPA proposed to stay the 
effectiveness of the April 21, 2004 rule as it relates to the State of 
Georgia only, while EPA conducts notice-and-comment rulemaking to 
further address the issues raised by the Petitioners (70 FR 9897; March 
1, 2005). Four parties commented on the proposed rule. No requests were 
made to hold a public hearing. After considering these comments, EPA 
has determined to finalize, as proposed, the stay of the effectiveness 
of this rule as it relates to the State of Georgia, only during 
notice--and comment proceedings for the petition for reconsideration.

DATES: This final rule is effective on September 30, 2005.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. OAR-2004-0440. All documents in the docket are listed in 
the EDOCKET index at http://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other materials, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in EDOCKET or in hard copy at the EPA 
Docket Center, EPA West (Air Docket), Attention E-Docket No. OAR-2004-
0440, Environmental Protection Agency, 1301 Constitution Avenue, NW., 
Room B102, Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744 and the 
fax number is (202) 566-1749.

FOR FURTHER INFORMATION CONTACT: General questions concerning today's 
action should be addressed to Jan King, Office of Air Quality Planning 
and Standards, Air Quality Strategies and Standards Division, C539-02, 
Research Triangle Park, NC, 27711, telephone (919) 541-5665, e-mail 
[email protected]. Legal questions should be directed to Winifred Okoye, 
Office of General Counsel, (2344A), 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, telephone (202) 564-5446, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    This action responds only to comments related to the stay of 
effectiveness of Phase II of the NOX SIP Call in the State 
of Georgia. Comments that we consider out of the scope of the proposed 
rulemaking or not directly related to the reconsideration proceedings 
are not addressed in this action, but will be addressed later in the 
final action on the petition for reconsideration.

Outline

I. Background
I. Final Rule
III. Response to Comments
    A. Comments on the Stay of the NOX SIP Call in 
Georgia
    B. Delay in Finalizing Phase II of the NOX SIP Call
    C. Stay of the 8-Hour Basis for the NOX SIP Call
    D. Effect of Stay on the NOX SIP Call Trading Program
    E. Comments on Modeling Assumptions
    F. General Comments
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Judicial Review

I. Background

    On October 27, 1998, EPA found that emissions of NOX 
from 22 States and the District of Columbia (23 States) were 
significantly contributing to downwind areas' nonattainment of the 1-
hour ozone national ambient air quality standard (NAAQS). [Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone, 63 FR 57354; October 27, 1998 (NOX SIP 
Call Rule)]. More specifically, EPA found that the State of Georgia was 
significantly contributing to 1-hour ozone nonattainment in Birmingham, 
Alabama and Memphis, Tennessee. (63 FR 57394). The EPA set forth 
requirements for each of the affected upwind States, including Georgia, 
to submit SIP revisions prohibiting those amounts of NOX 
emissions which significantly contribute to downwind nonattainment. The 
EPA further required that each State SIP provide for NOX 
reductions in amounts that any remaining emissions would not exceed the 
level specified in EPA's NOX SIP Call regulations for that 
State in 2007.
    A number of parties, including certain States as well as industry 
and labor groups, challenged the NOX SIP Call Rule. More 
specifically, Georgia and Missouri industry petitioners citing to the 
Ozone Transport Assessment Group (OTAG), modeling and recommendations, 
maintained that EPA had record support only for the inclusion of 
eastern Missouri and northern Georgia, as significantly contributing to 
downwind nonattainment. In Michigan v. EPA, 213

[[Page 51592]]

F. 3d 663 (D.C. Cir., 2000), cert. denied, 121 S. Ct. 1225 (2001) 
(Michigan), the D.C. Circuit Court vacated and remanded EPA's inclusion 
of the entire States of Georgia and Missouri, on grounds that OTAG had 
recommended NOX controls to reduce transport for areas 
within the fine grid parts of its modeling but recommended no 
additional controls for areas within the coarse grid of its modeling. 
Eastern Missouri and northern Georgia lie within the fine grid. The 
Court, however, did not question EPA's proposition that eastern 
Missouri and northern Georgia should be considered as significantly 
contributing to downwind nonattainment.
    On February 22, 2002, EPA proposed the inclusion of only the fine 
grid parts of Georgia and Missouri in the NOX SIP Call. 
(Response to Court Decisions on the NOX SIP Call, 
NOX SIP Call Technical Amendments, and Section 126 Rules, 67 
FR 8396; February 22, 2002) (Phase II). The EPA also proposed revised 
NOX budgets for Georgia and Missouri that included only 
these portions of each State.
    On April 21, 2004, EPA finalized, as proposed, the inclusion of 
eastern Missouri and northern Georgia in the NOX SIP Call 
Rule, allocated revised NOX budgets that reflected the 
inclusion of sources located in only these areas and set revised SIP 
submittal and full compliance dates of April 1, 2005 and May 1, 2007, 
respectively. (69 FR 21604).
    On June 16, 2004, the GCSEP filed a petition for reconsideration of 
the inclusion of the State of Georgia in the NOX SIP Call, 
under section 307(d) of the CAA (or the Act). Petitioners maintained 
that grounds that were of central relevance had occurred after the 
close of the notice-and-comment period for the February 22, 2002 
proposal. More specifically, Petitioners cited our March 12, 2004, 1-
hour ozone attainment redesignation of Birmingham, Alabama (69 FR 
11798; March 12, 2004). Additionally, GCSEP cited our earlier January 
17, 1995 Memphis, Tennessee, 1-hour ozone attainment redesignation (60 
FR 3352), and maintained that the State of Georgia should not be 
subject to the NOX SIP Call Rule because it was no longer 
significantly contributing to 1-hour ozone nonattainment in any 
downwind areas. Petitioners also raised other issues such as the effect 
of EPA's approval and the State of Georgia's implementation, beginning 
since May 1, 2003, of the Atlanta, Georgia attainment demonstration 
SIP. Petitioners further requested a stay of the effectiveness of the 
April 21, 2004, rule as it relates to the State of Georgia, under 
section 307(d)(7)(B). Finally, GCSEP filed a challenge in the Court of 
Appeals for the 11th Circuit, which has since been transferred to the 
D.C. Circuit. Additionally, EPA and GCSEP have requested and the Court 
has granted the joint request to hold the challenge in abeyance pending 
completion of the reconsideration proceedings.

II. Final Rule

    In today's action we are amending the Phase II rule by staying the 
effectiveness of the rule as it relates to the State of Georgia, only, 
during notice-and-comment rulemaking proceedings for the 
reconsideration petition. As explained in the proposed rule, EPA 
expects to provide notice-and-comment opportunity to the general public 
on the issues raised by GCSEP and several other issues as they relate 
to the continued applicability of the NOX SIP Call Rule to 
the State of Georgia. Additionally, we currently anticipate that we 
will most likely be proposing to withdraw or rescind our findings that 
sources in the State of Georgia emit NOX in amounts that 
significantly contribute to nonattainment of the 1-hour ozone NAAQS in 
both the former Birmingham, Alabama and Memphis, Tennessee 
nonattainment areas. This is a consequence of our redesignation of 
these downwind receptor areas to attainment. Thus, we expect that after 
EPA completes notice-and-comment rulemaking, the State of Georgia will 
likely no longer be subject to the NOX SIP Call 
requirements. Given this, we believe that the State of Georgia should 
not continue implementation efforts for the NOX SIP Call 
Rule while EPA initiates notice-and-comment rulemaking that will 
address the issues raised by GCSEP. Accordingly, in this action, EPA is 
staying the effectiveness of the April 21, 2004 rule with respect to 
the State of Georgia only, during the pendency of the notice-and-
comment rulemaking proceedings that will address the petition for 
reconsideration. The effect of this stay would be that the State of 
Georgia, would have no obligation during the pendency of the stay to 
regulate NOX emissions under the NOX SIP Call 
Rule for purposes of addressing downwind nonattainment of the 1-hour 
ozone NAAQS.

III. Response to Comments

    Four commenters submitted comments on our March 1, 2005 proposal. 
The comments are summarized herein below along with EPA's responses. We 
believe that the comments set forth in section III, D-F, below, are 
beyond the scope of the proposed rulemaking, which was to stay the 
effectiveness of Phase II in the State of Georgia, only, in order to 
address a Petition for reconsideration. We believe that these comments 
raise more substantive issues that are directly related to the 
reconsideration proceedings, which we anticipate will be proposed very 
shortly. Therefore, in today's action, we are not addressing or 
responding to any of them. Rather, we intend to address them in full in 
the context of that rulemaking action.

A. Comments on the Stay of the NOX SIP Call in Georgia

    Comment: One commenter raised the issue of our authority or lack 
thereof, under the CAA, to stay the effectiveness of our April 21, 2004 
rule. The commenter argued that a proposal to stay the effectiveness of 
a rule during reconsideration proceedings is not authorized under the 
Act and maintained that our failure to indicate the section of the Act 
that allows for the proposed stay resulted in ``obscuring the legal 
justification,'' for the stay. The commenter claimed we had provided 
``absolutely no justification for the stay,'' and argued that our 
action, to stay the rule, must neither be arbitrary nor capricious but 
based on reasoned explanation of the basis for the stay. The commenter 
further asserted that we had provided no discussion of the likelihood 
of success of the petition for reconsideration or the benefits and 
burdens of granting a stay. The commenter, citing to various decisions 
by the U.S. Court of Appeals for the District of Columbia, then argued 
that we should not grant the stay unless the proponent could 
demonstrate a likelihood of success on the merits. Another commenter 
argued in contrast that our authority to subject the State of Georgia 
to the NOX SIP Call was now questionable, in light of our 
redesignation of the downwind nonattainment areas, and a failure to 
stay the effectiveness of our April 21, 2004, rule during the 
reconsideration proceeding would be unreasonable, an abuse of 
discretion, and unlawful. The commenter further maintained that staying 
the rule pending the reconsideration proceedings would not only be 
proper but also prevent the State of Georgia from expending scarce 
resources and time on implementing the requirements especially because 
``the validity'' of the rule was ``in such significant doubt.''
    Response: We are taking this action under Section 553 of the 
Administrative Proceedings Act (APA), and not under section 
307(d)(7)(B) of the CAA, which is clearly inapplicable. We had duly

[[Page 51593]]

informed petitioners of our authority in our letter of October 22, 
2004, from Jeffrey Holmstead, Assistant Administrator for Office of Air 
and Radiation to Margaret C. Campbell, Troutman Sanders LLP, Counsel 
for Georgia Coalition for Sound Environmental Policy, granting the 
request for reconsideration. (A copy of this letter is in the Docket 
for this rulemaking). Further, as a general matter, the public is 
charged with knowledge of applicable laws. We also believe that we have 
the authority to stay the effectiveness of Phase II in the State of 
Georgia during the pendency of the reconsideration proceedings and that 
our failure to clearly cite our authority to do so in the proposal has 
no effect on the outcome of the proposed action.
    It is also incorrect to state that Petitioners have failed to show 
a likelihood of success on the merits. To the contrary, as stated in 
the proposed rule, Petitioners have alleged that our prior basis for 
including the State of Georgia in the NOX SIP Call Rule 
evanesced with the attainment redesignation of the downwind receptor 
areas, Memphis, Tennessee and Birmingham, Alabama.\1\ Thus, in response 
to the Petition for reconsideration, we now expect to propose a 
rescission or withdrawal of our findings that sources and emitting 
activities in the State of Georgia emit NOX in amounts that 
significantly contribute to nonattainment of the 1-hour ozone standard 
in both Birmingham, Alabama and Memphis, Tennessee, both of which are 
now in attainment of the 1-hour standard. If we ultimately finalize, 
the rescission or withdrawal of the NOX SIP Call findings, 
we anticipate that the State of Georgia would no longer have an 
obligation to reduce NOX emissions under the NOX 
SIP Call Rule, for purposes of addressing downwind nonattainment of the 
1-hour ozone NAAQS. Therefore, it is now most likely that after notice-
and-comment rulemaking the State of Georgia will not be subject to the 
NOX SIP Call requirements. Given this position, it would 
appear counterproductive and inappropriate to require the State of 
Georgia to continue implementation efforts for the NOX SIP 
Call requirements, during the pendency of the reconsideration petition. 
In fact, we agree with the comment that such an action on our part 
would be unreasonable. It could also be construed as both arbitrary and 
capricious.
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    \1\ On March 12, 2004, we redesignated Birmingham, Alabama, to 
attainment of the 1-hour ozone NAAQS. In addition, since 2001, the 
Memphis, Tennessee nonattainment area, which was redesignated in 
1995 has had monitored attainment air quality data.
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    Comment: A commenter argued that our proposal was of 
``indeterminate length [because] [i]f EPA fails to complete the 
reconsideration process, the stay will last indefinitely.''
    Response: Although we are only obligated to give ``[p]rompt 
notice'' of the denial of a petition for reconsideration, under Section 
555(e) of the APA, our failure over time to respond to this petition 
may be subject to judicial review under Section 706(1) of the APA. See 
for example, In re: American Rivers and Idaho Rivers United, 372 F.3d 
413 (D.C. Cir., 2004); In re: Int'l Chemical Workers Union, 958 F.2d 
1144 (D.C. Cir., 1992). Therefore, EPA does not agree that the stay 
could be of infinite length.
    Comment: A commenter viewed our redesignation of the downwind 
receptors as an inadequate justification for staying this rule. The 
commenter also stated that our redesignation of Birmingham, Alabama 
nonattainment area ``did not take effect until after the Phase II Rule 
was finalized.'' (Emphasis in original). The commenter further argued 
that the stay was arbitrary and capricious and therefore unlawful 
``because it does not treat similarly situated sources similarly.'' 
According to the commenter, the stay will result in sources in the 
State of Georgia not being subject to the NOX SIP Call 
requirements, even though we found that these sources contribute 
significantly to ozone nonattainment, while similar sources have been 
subject to the NOX SIP Call requirements since May 31, 2004.
    Response: In the NOX SIP Call, we determined that a 
downwind area should be considered

``nonattainment,'' for purposes of section 110(a)(2)(D)(i)(I), under 
the 1-hour ozone NAAQS if the area (as of 1994-96 time period) had 
nonattainment air quality and if the area was modeled to have 
nonattainment air quality in the year 2007, after implementation of 
all measures specifically required of the area under the CAA as well 
as implementation of Federal measures required or expected to be 
implemented by that date.

(63 FR 57386; see also, 63 FR 57373). We explained that ``nonattainment 
[areas] includes areas that have monitored violations of the standard 
and areas that `contribute to ambient air quality in a nearby area' 
that is violating the standard.'' (63 FR 57386; see, 63 FR 57385-87 for 
our discussion on the determination of downwind nonattainment 
receptors).
    We also determined at that time that sources in the State of 
Georgia were significantly contributing to the 1-hour standard 
nonattainment in Birmingham, Alabama and Memphis, Tennessee (63 FR 
57394). Thus, as earlier explained, given that we have redesignated 
both Memphis, Tennessee and the Birmingham, Alabama nonattainment 
areas, we anticipate proposing to rescind or withdraw our finding that 
sources and emitting activities in the State of Georgia emit 
NOX in amounts that significantly contribute to 
nonattainment of the 1-hour ozone standard in both Birmingham, Alabama 
and Memphis, Tennessee. Therefore, we believe that our redesignation of 
the downwind receptors is sufficient justification for staying the 
effectiveness of our April 21, 2004, rule with regard to the State of 
Georgia. For the same reason, we also do not believe that this stay 
results in not treating ``similarly situated sources similarly.'' All 
other areas subject to the NOX SIP Call are currently 
contributing significantly to downwind nonattainment.
    As to the comment that our Birmingham, Alabama redesignation became 
effective after our finalization of the Phase II rule, this is also 
incorrect. The effective dates of regulations appear in the ``effective 
date'' section of the Federal Register document. 1 CFR 18.17 (2004). 
See also, Safety-Kleen Corp. v. EPA, No. 92-1629 (D.C. Cir., Jan. 
1996). The effective dates for the redesignation of Birmingham, Alabama 
and Phase II of the NOX SIP Call were April 12, 2004, and 
June 21, 2004, respectively.

B. Delay in Finalizing Phase II of the NOX SIP Call

    Comment: Two commenters claimed that our delay in finalizing the 
April 21, 2004, rule resulted in the redesignation of the Birmingham, 
Alabama nonattainment area. These commenters maintained that other 
partial States, similar to Georgia, and for example, the State of 
Alabama, have fully complied with the NOX SIP Call 
requirements. And one commenter argued that despite the fact that the 
same argument, made by Petitioners, could be made for other 
southeastern States with already adopted and approved NOX 
SIP Call SIPs, we would be requiring these States to continue with full 
implementation. Other commenters also contended that our delay in 
finalizing Phase II resulted in detrimental air quality for several 
downwind areas and therefore, urged us not to further delay 
implementation by the proposed stay.
    Response: None of the States, southeastern or otherwise, subject to 
the NOX SIP Call are similarly situated with

[[Page 51594]]

the State of Georgia. All other States subject to the NOX 
SIP Call do contribute to nonattainment in downwind States. Further, 
although we first proposed the Phase II rule on February 21, 2002, and 
ultimately finalized it on April 21, 2004, during the intervening 
period, we had to juggle competing rulemaking demands on our limited 
scientific and legal staff. Any delay in finalizing Phase II did not 
contribute to adverse air quality in Birmingham or Memphis since these 
areas were able to attain the 1-hour ozone standard and be redesignated 
during that time.

C. Stay of the 8-Hour Basis for the NOX SIP Call

    Comment: One commenter argued that any decision to stay Phase II in 
the State of Georgia should factor in our finding that sources in the 
State of Georgia were significantly contributing to the 8-hour ozone 
standard nonattainment areas in the States of Alabama, Illinois, 
Indiana, Kentucky, Michigan, Missouri, North Carolina, South Carolina, 
Tennessee and Virginia.\2\ The commenter further argued that a stay 
would be prejudicial to other downwind States, and primarily the State 
of North Carolina, because we have required this State to adopt a SIP 
to achieve attainment of the 8-hour ozone standard by 2009. According 
to the commenter, under our proposed schedule, sources in the State of 
Georgia would have been subject to controls on May 31, 2004, which 
would have assisted the downwind nonattainment areas in meeting their 
various statutory deadlines. The commenter also argued that our 
exclusion of the State of Georgia from the NOX SIP Call 
requirements would ``punish downwind areas,'' and further result in 
their not attaining the 8-hour standard ``as expeditiously as 
practicable,'' under section 7502(a)(2) of the Act. Another commenter 
urged us to finalize the stay as proposed because we had determined 
that emissions from the State of Georgia were not impacting any 
downwind 8-hour ozone nonattainment areas in the recently promulgated 
Clean Air Interstate Rule, [70 FR 25162; May 12, 2005 (CAIR)].
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    \2\ 63 FR 57395; October 27, 1998.
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    Response: In the NOX SIP Call Rule, we had also found 
that sources in the State of Georgia were significantly contributing to 
the 8-hour ozone standard nonattainment areas in the States of Alabama, 
Illinois, Indiana, Kentucky, Michigan, Missouri, North Carolina, South 
Carolina, Tennessee and Virginia. (63 FR 57395). But because of the 
various legal challenges to our promulgation of the 8-hour ozone NAAQS 
(62 FR 38856; July 18, 1997), American Trucking Ass'ns, Inc. v. EPA, 
175 F. 3d 1027 (D.C. Cir., 1999), reh'g granted in part, denied in 
part, 195 F.3d 4 (D.C. Cir., 1999), aff'd in part, rev'd in part and 
remanded sub nom., Whitman v. EPA, 531 U.S. 457 (2001), we requested 
and the Court, in Michigan v. EPA, 213 F. 3d 663, 670-671 (D.C. Cir., 
2000), cert. denied, 121 S. Ct. 1225 (2001) (Michigan), granted our 
motion to stay consideration of issues regarding the 8-hour basis for 
the NOX SIP Call. Additionally, in a separate rulemaking 
action, we stayed the 8-hour basis for the NOX SIP Call 
indefinitely. (65 FR 56245; September 18, 2000). See, also 40 CFR 
51.121(q). Thus, at this time all of the affected States, which include 
the States of Georgia and North Carolina, remain under no obligation to 
comply with the 8-hour basis for the NOX SIP Call. Also, we 
would need to lift the stay through notice-and-comment rulemaking. 
Further, we note that, in the recently promulgated CAIR, we found that 
sources and emitting activities in the entire State of Georgia do not 
significantly contribute to 8-hour nonattainment in any downwind State 
(70 FR 25249).
    Therefore, today's action only stays the requirements of Phase II 
of the NOX SIP Call, which relate to the 1-hour basis for 
the NOX SIP Call, in the State of Georgia. Additionally, in 
the soon-to-be proposed Petition for Reconsideration rule, we expect to 
solicit comments on the impact of the continued stay of the 8-hour 
NOX SIP Call basis on the Petitioners request that we not 
subject the State of Georgia to the NOX SIP Call Rule.

D. Effect of Stay on the NOX SIP Call Trading Program

    Comment: Three commenters also opposed the stay on grounds that the 
exclusion of the State of Georgia would compromise the integrity of the 
NOX SIP Call trading program. They claimed that the sources 
in the State of Georgia, although now regulated by the State, are not 
subject to a cap on NOX emissions, unlike similar sources 
that are covered by the NOX SIP Call requirements. According 
to the commenters, one consequence of the absence of a cap is that 
these sources are under no requirement to purchase allowances for 
exceedances of NOX SIP Call emissions levels and they argued 
that this, lack of a cap, could result in future exceedances of the 1-
hour standard and hinder maintenance of the standard in downwind areas. 
One commenter noted that it was unclear whether NOX 
emissions from these sources were restricted either through the State 
SIP or permit conditions.
    Response: As stated earlier, we believe that this comment and the 
comments set forth in section III, E-F below, are beyond the scope of 
the proposed rulemaking. We believe that these comments raise more 
substantive issues that are directly related to the reconsideration 
proceedings, which we anticipate will be proposed very shortly. 
Therefore, we are not addressing these comments at this time, rather we 
intend to address them in full in the context of that rulemaking 
action.

E. Comments on Modeling Assumptions

    Comment: One commenter noted that the modeling studies conducted in 
the southeastern States and nationwide, such as CAIR and the Gulf Coast 
Ozone Study, assumed the full implementation of the NOX SIP 
Call in all affected States, including northern Georgia. The commenter 
then pointed out that the various assumptions would be rendered 
incorrect by excluding the State of Georgia from NOX SIP 
Call requirements.
    Response: As stated earlier above, we believe that this comment and 
the comments set forth in section III. D and F are beyond the scope of 
the proposed rulemaking. We believe that these comments raise more 
substantive issues that are directly related to the reconsideration 
proceedings, which we anticipate will be proposed very shortly. 
Therefore, we are not addressing these comments at this time, rather we 
intend to address them in full in the context of that rulemaking 
action.

F. General Comments

    Comment: Another commenter argued that there were several 
compelling reasons to stay the effectiveness of our April 21, 2004 
rule, such as our June 15, 2005, revocation date for the 1-hour ozone 
standard, and the revisions and implementation of the Atlanta, Georgia 
SIP, which requires NOX and volatile organic compounds 
emissions from both stationary and mobile sources.
    Response: As stated earlier above, we believe that this comment and 
the comments set forth in section III, D-E above, are beyond the scope 
of the proposed rulemaking. We believe that these comments raise more 
substantive issues that are directly related to the reconsideration 
proceedings, which we anticipate will be proposed very shortly. 
Therefore, we are not addressing these comments at this time, rather we 
intend to address them in full in the context of that rulemaking 
action.

[[Page 51595]]

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The OMB has exempted this regulatory action from Executive Order 
12866 review. This action stays EPA's finding in Phase II of the 
NOX SIP Call related to Georgia and does not impose any 
additional control requirements or costs.

B. Paperwork Reduction Act

    Today's action does not add any information collection requirements 
or increase burden under the provisions of the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.), and therefore is not subject to these 
requirements.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
in the Small Business Administration's (SBA) regulations at 13 CFR 
12.201; (2) a small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This final action neither imposes requirements on small entities 
nor will there be impacts on small entities beyond those, if any, 
required by or resulting from the NOX SIP Call and the 
Section 126 Rules. We have therefore concluded that today's rule will 
relieve regulatory burden for all small entities affected by this rule. 
We continue to be interested in the potential impacts of the proposed 
rule on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for any proposed or final rules with ``Federal mandates'' 
that may result in the expenditure to State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year. Before promulgating a rule for which a 
written statement is needed, section 205 of the UMRA generally requires 
EPA to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows EPA to adopt an 
alternative other than the least costly, most cost-effective or least 
burdensome alternative if the Administrator publishes with the final 
rule an explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or Tribal 
governments or the private sector. The EPA prepared a statement for the 
final NOX SIP Call that would be required by UMRA if its 
statutory provisions applied. Today's action does not create any 
additional requirements beyond those of the final NOX SIP 
Call, therefore, no further UMRA analysis is needed. This rule stays 
the portion of the NOX SIP Call that would require the State 
of Georgia to implement NOX emissions controls requirements.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Today's action

[[Page 51596]]

does not impose an enforceable duty on these entities. This action to 
stay the NOX SIP Call requirements as they relate to 
Georgia, imposes no additional burdens beyond those imposed by the 
final NOX SIP Call. Thus, Executive Order 13132 does not 
apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
Tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on Tribal governments, on the 
relationship between the Federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified in Executive Order 13175. 
Today's action does not significantly or uniquely affect the 
communities of Indian Tribal governments. The EPA stated in the final 
NOX SIP Call Rule that Executive Order 13084 did not apply 
because that final rule does not significantly or uniquely affect the 
communities of Indian Tribal governments or call on States to regulate 
NOX sources located on Tribal lands. The same is true of 
today's action. Thus, Executive Order 13175 does not apply to this 
rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to the Executive Order because it is not 
economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This action does not impose 
requirements beyond those, if any, required by or resulting from the 
NOX SIP Call and Section 126 Rules.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355; May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This rulemaking 
does not involve technical standards, therefore, EPA is not considering 
the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action does not involve special consideration of environmental 
justice related issues as required by Executive Order 12898 (59 FR 
7629, February 16, 1994). For the final NOX SIP Call, the 
Agency conducted a general analysis of the potential changes in ozone 
and particulate matter levels that may be experienced by minority and 
low-income populations as a result of the requirements of that rule. 
These findings were presented in the regulatory impact analysis for the 
NOX SIP Call. Today's action does not affect this analysis.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective September 30, 2005.

L. Judicial Review

    Section 307(b)(1) of the Act specifies which Federal Courts of 
Appeal have venue for petitions of review of final actions by EPA. This 
section provides, in pertinent part, that petitions must be filed in 
the Court of Appeals for the District of Columbia Circuit if the agency 
action consists of ``nationally applicable regulations promulgated, or 
final action taken, by the Administrator,'' or (ii) such action is 
locally or regionally applicable if ``such action is based on a 
determination of nationwide scope or effect and if in taking such 
action the Administrator finds and publishes that such action is based 
on such a determination.''
    Any final action related to the NOX SIP Call is 
``nationally applicable within the meaning of section 307(b)(1).'' The 
Administrator has also determined that any final action regarding the 
NOX SIP Call is of nationwide scope and effect for purposes 
of section 307(b)(1). See, 63 FR 57480. Thus, any petition for review 
of today's final action must be filed in the Court of Appeals for the 
District of Columbia Circuit within 60 days from the date this final 
action is published in the Federal Register.

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Ozone, Reporting 
and recordkeeping requirements.

    Dated: August 18, 2005.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.

0
For the reasons set forth in the preamble, part 51 of chapter I of 
title 40 of the Code of Federal Regulations is amended as follows:

[[Page 51597]]

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION AND SUBMITTAL OF 
IMPLEMENTATION PLANS

0
1. The authority citation for Part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart G--Control Strategy

0
2. Section 51.121 is amended by adding paragraph (s) to read as 
follows:


Sec.  51.121  Findings and requirements for submission of State 
implementation plan revisions relating to emissions of oxides of 
nitrogen.

* * * * *
    (s) Stay of Finding of Significant Contribution with respect to the 
1-hour standard. Notwithstanding any other provisions of this subpart, 
the effectiveness of paragraph (a)(1) of this section is stayed as it 
relates to the State of Georgia, only as of September 30, 2005.

[FR Doc. 05-17031 Filed 8-30-05; 8:45 am]
BILLING CODE 6560-50-P